The PT is on a proposed law to allow adoption of kids by same sex couples in private and state agencies. The congressional findings say that private agencies not infrequently involve cross-border adoptions, but state agencies involve virtually none.

All I could think about in response is it wouldn't fly with the court under Lopez 2 b/c it's attempting to regulate too much. If it only regulated private agencies, then it would be OK, but since state agencies involve no interstate movement of children (instrumentalities), it's no bueno.

Is that right? wrong? Am I misunderstanding Lopez 2?

The PT is trying to get you to analyze this adoption law under the commerce clause? Weird. I guess its just written that way, but I feel like you should be using substantive rights (unless you did that too, or if I'm really misunderstanding this).

The PT is on a proposed law to allow adoption of kids by same sex couples in private and state agencies. The congressional findings say that private agencies not infrequently involve cross-border adoptions, but state agencies involve virtually none.

All I could think about in response is it wouldn't fly with the court under Lopez 2 b/c it's attempting to regulate too much. If it only regulated private agencies, then it would be OK, but since state agencies involve no interstate movement of children (instrumentalities), it's no bueno.

Is that right? wrong? Am I misunderstanding Lopez 2?

The PT is trying to get you to analyze this adoption law under the commerce clause? Weird. I guess its just written that way, but I feel like you should be using substantive rights (unless you did that too, or if I'm really misunderstanding this).

Well, the only other Q on the exam is War Powers, so I figured I needed to approach the law on CC/Taxing/Spending/10A/EPC/DPC/s. 5 grounds in its entirety.

I'd love to read what you come up with for commerce clause here mang:Congress has the power to allow same sex couples to adopt because not allowing them to adopt makes them mad, which makes them more prone to violence, which can wreck our economy

laxbrah420 wrote:I'd love to read what you come up with for commerce clause here mang:Congress has the power to allow same sex couples to adopt because not allowing them to adopt makes them mad, which makes them more prone to violence, which can wreck our economy

Hahaha, here's all I could come up with...

[1] Instrumentalities of interstate commerce?

Yes: private adoptions not infrequently involve movement of children across state lines for a commercial activity — their “purchase”

No: the law affects both state and private adoption agencies. Although private adoption agencies may involve not-insignificant amounts of inter-state travel for children, state agencies involve virtually none. Therefore, in some aspects, the law is attempting to regulate instrumentalities that are local in nature.

[2] Intrastate activity that has a substantial effect on interstate commerce?

Yes: Commercial: in private agencies, the children are bought/sold on the market: consideration = the child (biological parents/agency) and the substantial fee. In state agencies, the children are exchanged; Congressional findings: decreases number of interstate adoptions and intrastate adoptions —> $mms less spent on raising children

No: Non-commercial: not a traditional economic activity on its face, i.e., a commodity like marijuana; Doesn’t have a substantial effect on IC. Congressional findings are speculative at best. $$ would have been spent on raising those children regardless — allowing gay couples to adopt would merely transfer that cost to a different actor.

N&P

Broader regulatory scheme = ensuring that children are raised in stable households

Allowing homosexual couples to adopt would be useful in carrying out that ends — they’re no worse parents than heterosexuals and children who grow up in foster homes, e.g., are in much less stable environments.

But, too much federal power — arguments based on studies that aren’t on point (relate to gay and lesbian parents in general, not adoptive parents) and ignore [some] contrary expert concerns

How shit was my analysis? I couldn't think of much more to put down, since I do feel like the thrust of the analysis would be on EPC/DPC grounds.

Wait a minute, wouldn't the EPC analysis just adopt the same sort of analysis as N&P since it's rational basis review? and then it would end up passing b/c lolrationalbasis.

I think you might be able to make a super weak naked Necessary & Proper argument if you want to look at McCulloch and ignore all subsequent case law. I really am struggling to find a case where the commerce power has been interpreted as giving the power to congress to simply allow a practice in a vaccuum. It's not like a preemption issue where there's a state law forbidding it and you want to argue dcc forbids that, right?

Woops, left out some info: yeah, some states bar the adoption of kids by same sex couples. The proposed statute would bar discrimination based on the basis of sexual orientation, effectively overturning those state laws.

Bronck wrote:Wait a minute, wouldn't the EPC analysis just adopt the same sort of analysis as N&P since it's rational basis review? and then it would end up passing b/c lolrationalbasis.

For your EPC you're definitely going to want to argue for heightened review brah. Go through factors for determining heightened review for suspect/quasi suspect, also check if adoption might be a fundamental right, make a conclusion (quasi suspect seems pretty solid to me...), and then go through the outcomes under each analysis....you could just do a Romer, "it passes rational so we're not gonna go further" test...but I'd imagine you'd be leaving points on the table that way

Bronck wrote:Wait a minute, wouldn't the EPC analysis just adopt the same sort of analysis as N&P since it's rational basis review? and then it would end up passing b/c lolrationalbasis.

For your EPC you're definitely going to want to argue for heightened review brah. Go through factors for determining heightened review for suspect/quasi suspect, also check if adoption might be a fundamental right, make a conclusion (quasi suspect seems pretty solid to me...), and then go through the outcomes under each analysis....you could just do a Romer, "it passes rational so we're not gonna go further" test...but I'd imagine you'd be leaving points on the table that way

Yeah, my initial thought was... well not gender/race-based... therefore, rational basis.... b/c it's helping homosexual couples adopt and the law doesn't have any sort of animus going on, it passes... therefore, no need for further analysis.

Wouldn't it be harder to argue for the law based on heightened scrutiny since the state has the burden of showing constitutionality? So effectively, the opponent would be arguing that it receives heightened scrutiny (which seems bizarre)?

Bronck wrote:Woops, left out some info: yeah, some states bar the adoption of kids by same sex couples. The proposed statute would bar discrimination based on the basis of sexual orientation, effectively overturning those state laws.

This is still super weird. I'd love someone else to chime in, but other than 14th amendment stuff, I think the only argument would be those laws are unconstitutional to begin with due to the DCC... I still fail to see how congress actually gets the affirmative power to not prohibit gays from adopting from their commerce clause.

Tiago Splitter wrote:What about a Gregory v. Ashcroft clear statement rule requirement since the state is being regulated in the same way a private actor would?

Hmm, I see what you're saying. Since the statute only says: "Discrimination on the basis of sexual orientation in adoption by public or private agencies is hereby prohibited", you could argue that it doesn't apply to state agencies since it's not being explicit about it?

Tiago Splitter wrote:What about a Gregory v. Ashcroft clear statement rule requirement since the state is being regulated in the same way a private actor would?

Hmm, I see what you're saying. Since the statute only says: "Discrimination on the basis of sexual orientation in adoption by public or private agencies is hereby prohibited", you could argue that it doesn't apply to state agencies since it's not being explicit about it?

Nah that sounds pretty explicit.

I do feel like our prof expects to see this argued under the commerce clause, but he's from the school of everything is okay under the commerce clause so that makes sense.

Bronck wrote:Woops, left out some info: yeah, some states bar the adoption of kids by same sex couples. The proposed statute would bar discrimination based on the basis of sexual orientation, effectively overturning those state laws.

This is still super weird. I'd love someone else to chime in, but other than 14th amendment stuff, I think the only argument would be those laws are unconstitutional to begin with due to the DCC... I still fail to see how congress actually gets the affirmative power to not prohibit gays from adopting from their commerce clause.

Yeah, this question is weird... If it was Congress BARRING gays from adopting, then the question would be far more interesting... but under the EPC at least, it easily gets through... DPC it would get through if determine that adoption is a fundamental right.

Tiago Splitter wrote:What about a Gregory v. Ashcroft clear statement rule requirement since the state is being regulated in the same way a private actor would?

Hmm, I see what you're saying. Since the statute only says: "Discrimination on the basis of sexual orientation in adoption by public or private agencies is hereby prohibited", you could argue that it doesn't apply to state agencies since it's not being explicit about it?

Nah that sounds pretty explicit.

I do feel like our prof expects to see this argued under the commerce clause, but he's from the school of everything is okay under the commerce clause so that makes sense.

Gotcha. So the distinction isn't: "does the statute make a clear statement that it applies to state actors specifically" (I was thinking you could read the above statute as only applying to federal agencies, e.g.,) but rather: "does the statue make a clear statement that it applies to government actors in general?"

Bronck wrote:Gotcha. So the distinction isn't: "does the statute make a clear statement that it applies to state actors specifically" (I was thinking you could read the above statute as only applying to federal agencies, e.g.,) but rather: "does the statue make a clear statement that it applies to government actors in general?"

You might be able to argue it both ways. The test is whether the law upsets the traditional federal-state balance of power. If it does, SCOTUS will read it as not applying to state actors unless there is a clear statement that it does apply to state actors. So probably not a strong argument that it doesn't apply here but maybe worth tossing in for a quick point or two.

Bronck wrote:BTW Tiago, this is his 2003 exam if you want to discuss it more thoroughly later on

Definitely. But I've got a lot of review to do before then. This thread is way smarter than me.

laxbrah420 wrote:i just combined a few outlines and uploaded them to office depot to print, put a spiral comb on, and throw in some tabs gonna have a 100 page bound outline and 5 supplements at my exam

That's actually a great idea. Having it in "book" form is superior to stapling on the corner, allows for easier flipping and easier access to more content at once

laxbrah420 wrote:i just combined a few outlines and uploaded them to office depot to print, put a spiral comb on, and throw in some tabs gonna have a 100 page bound outline and 5 supplements at my exam